When reviewing instructions, a common error we encounter in testamentary trust will packages, is that the Willmaker chooses for their estate to pass directly to their spouse in their own name, but then structures the testamentary trust so that their Spouse is nominated as the Nominated Beneficiary, trustee, and principal of the testamentary trust.
With these choices, it means that the testamentary trust is only established on the death of both the Willmaker and their spouse, and therefore the spouse is not alive to take on the role of Nominated Beneficiary, trustee or principal.
To correct this, a choice needs to be made as to when the testamentary trust is to be established. Either:
a) establish the testamentary trust only on the death of both the Willmaker and their spouse (and name someone other than the spouse as the trustee, principal and Nominated Beneficiary). To do this, answer the question ‘At [Willmaker’s] death, select how the estate is to pass’ to be: ‘To [Spouse] in own name’;
b) establish the testamentary trust immediately on the death of the Willmaker (and name the spouse as trustee and/or principal, and Nominated Beneficiary).